February 16, 2010

Stories raising the possibility that justices John Paul Stevens and Ruth Bader Ginsburg may leave at roughly the same time have suddenly become part of the Washington conversation, already fueling nightmare scenarios of dragged-out battles between a weakened President Barack Obama and a fiercely contentious Senate over possible replacements.

"Republicans are out for blood, and Democrats are out for a fight," said Steve Wermiel, professor at American University Washington College of Law. "We're close to a peak of partisan wrangling in Washington.... We all believed you wouldn't dare filibuster a Supreme Court nominee because everyone recognized that the Supreme Court needs to do its work... That assumption may be less true than it once was."

... [I]n a strange way, two vacancies at once might actually help Obama push through at least one liberal nominee. President Ronald Reagan perfected that strategy from the conservative side in 1986 when Chief Justice Warren Burger retired. Reagan nominated William Rehnquist, then an associate justice, to move up to chief and named Antonin Scalia to replace Rehnquist as associate justice. That meant hitting the Senate with two nominations at once. The Senate could only stomach one bruising battle that summer, it appeared, so Rehnquist took the heat while Scalia, who arguably should have troubled Democrats even more, sailed through without a dissenting vote.

That was pre-Bork. And the game changed post-Bork. There will be no stealth appointment anymore.

... Nan Aron of the liberal Alliance for Justice struck an optimistic note. "Let's be positive," said Aron, a veteran of confirmation wars. "Two vacancies on the Court gives the president a historic opportunity to appoint justices who will begin to change the national discussion around critical issues affecting the environment, consumer protections and civil rights."

I urge Prez Obama pick more "first" types of nominees, which could involve any varied combination of gender, racial, ethnic and/or professional and personal backgrounds. I also urge him to nominate whichever "first" he thinks will make the best Justice, and to name this person as quickly as possible after a sitting Justice announces she or he is stepping down, and to urge hearings and a vote on this nominee ASAP. I believe that following this script will, for all practical purposes, prevent a filibuster no matter what the perceived politics of the nominee.

Yes, be very quick! That'll stun the opposition. Perhaps Obama can, early on, do his "the time for talking is over" routine. That's worked well for him. Surely, if you nominate a couple people and don't give us time to study their background, the GOP will be lulled into honoring the tradition against using the filibuster. Absurd!

My personal preference, and the one I believe is the intended role of the Senate, is to approve any qualified candidate. I despise these political litmus tests.

However, (you knew there had to be a however, didn't you?) is that opponents shouldn't get to trade on our honor. The above is what I, and most Republicans, believe, but it's not what Obama believes. It's not what he did. He voted to fillibuster. In this case he should get to live with the gamerules that he sought to impose on others.

The Barak Obama I know will only use the Supreme Court appointments to win favor with the Democrat voting blocs, whether Hispanic, Black, or Jewish. Frankly, he could care less how our government works 10 or 20 years from now...he has plans that require his re-election so that he can finish finish the tearing down of all economic and military power in the USA forever, and make Chavez, Castro and his communist family proud of him. By then the Supreme Court rulings wont matter much in this backwater slum he is creating to be ruled by the People's Army of government workers and their Great Leader for Life.

Stevens and Ginsberg going will not fundamentally change the Court with Obama in charge. Obama will essentially replace them with younger versions of themselves. Sotomayor is liberal, but pro government (like many former prosecutors)--definitely not my choice---I would expect Obama not to go farther left with his SCOTUS picks.

Any Obama pick will be pro choice for sure, since any justice he picks flipping would create a huge backlash to him. Dianne Wood is definitely in the running. She is liberal, very smart and considered persuasive (she is compared to a liberal Roberts), but I doubt would move the court farther left or be further activist (about the same as Stevens and Ginsberg have been).

If the Republicans pick up more GOP Senate seats (making a filibuster more likely), Obama's picks will be tempered by that. If Republicans manage to take the Senate (hard but not impossible), Obama will have to go more centrist.

Let's be honest here: no matter who Obama appoints to the Supreme Court he has absolutely ZERO opportunity to further his agenda on the court more than he currently can.

Ginsburg and Stevens are just about as far Left as you can get without doing a double-flip reverse and wind up on the right. The absolute BEST Obama could do is wind up nominating equally Leftist justices.

So no matter what Obama does he's not going to be able to change the balance of power on the court.

Harriet Miers was qualified for SCOTUS--but weak. Harry Reid tried to snooker Bush into going for her. Bush figured a loyalist with little judicial record to pick over was the safe choice. Anything but. That pick said more about George Bush than it did about Harriet Miers (unfortunately she got put in a bad situation). She was a terrible, terrible pick for conservatives. Fortunately conservatives spoke up and the President figured out he screwed up.

I only wish more spoke up for the Medicare drug entitlement expansion.

I don't want to see a fight. It would dilute the necessary efforts to kill ObamaCare, Cap and Trade, etc. The seats are already liberal. Assuming, Obama does nominate a loon (though I wouldn't put it past him), the Repubs should acquise.

Althouse needs a grammar/usage label. Aron wants to change the national discussion around something or other. Is that something or other some sort of obstacle? If she's not getting her way, I suppose it is. Earlier, we had Sharona's strange use of the word sinister and yesterday the LGM snippet about Althouse's contrarianism running so vast... Sounds like a German talking about driving on the autobahn.

I urge Prez Obama pick more "first" types of nominees, which could involve any varied combination of gender, racial, ethnic and/or professional and personal backgrounds. I also urge him to nominate whichever "first" he thinks will make the best Justice, and to name this person as quickly as possible after a sitting Justice announces she or he is stepping down, and to urge hearings and a vote on this nominee ASAP.

And here we have, at least for me personally, a glaring example of the difference between liberal and conservative thought. First and foremost, notice the emphasis on identity politics with a person's actual ability falling to second consideration. Then notice the desire for change simply for change's sake. As far as innovation and social change go, it has long struck me that liberals are content to cast about with violent intellect trying this and this and this, all the while saying "SOMETHING MUST BE DONE...PEOPLE ARE HURTING OUT THERE".

Conservatives aren't blind to the pain, but conservatives, at least in my experience, don't seek change for changes sake, but would rather try to do things that actually try and solve the problem.

It just seems that decades of do-gooderism has hurt more of those people it was intended to help because consequences weren't as important as feeling good about "solving" a problem.

Politically, I suspect a SCOTUS nomination fight will not matter (except to each side's hard-core base, and they're not up for grabs in any event) compared to the economic and perhaps terrorism-related issues that will dominate this fall's midterms.

No one (either in this thread or in the commentary quoted by Althouse) is really interested in the main work of the SCOTUS -- resolving disagreements between the federal circuits over the interpretation of federal statutes. Those cases often turn on textual analyses that, if Congress doesn't like the result, can easily be fixed when political power changes hands. Instead, folks want to focus on the part of the docket that turns on policy issues, typically Equal Protection or Due Process claims where constitutional text is either vague or completely silent, stare decisis is at is weakest and the case basically amounts to a choice between competing political value judgments.

If that's what matters, then there is no reason not to treat SCOTUS nominations like any other, with the huge caveat that the appointments are for life. Nomination fights have been trending that way at least since the Bork fiasco. In the second Bush II term, for example, Sen. Schumer made it clear that he would have pushed to filibuster any attempt by Bush to fill another SCOTUS opening, if one had opened up after the Roberts/Alito appointments.

If you think of the SCOTUS as an institution that sets national policy in key areas, then use of the filibuster makes lots of sense here. Nominees for executive positions can be removed by the next administration, while appointees to nominally independent regulatory boards (NLRB, SEC, etc.) have fixed terms that can outlast an administration for, typically, only a year or two. But SCOTUS judges are around for decades -- Stevens, after all, was a Ford appointee. Not too many of them to be found anywhere else in the Gov't these days.

I suspect that American voters too now look at the SCOTUS as a different institution, more policy setting than law declaring, and thus there is no reason to expect that voters will be upset by the use of the filibuster (and each party's base would be furious if the filibuster wasn't used to block the otherside's ideal candidate). As the political logic pushes the key players -- the President and the opposition party in the Senate -- to use all of their powers to shape the SCOTUS as a political institution, we will soon arrive at a point where no one will be able to get through the appointment process. That political logic is pushing the appointment process towards total breakdown, and the only way to avoid that result may be to revamp the SCOTUS as an instutution, perhaps by getting rid of life tenure and substituting fixed terms.

So it will be very interesting to see how this will play out if, as seems likely, Stevens (and perhaps Ginsberg too) steps down at the end of this term.

Funny how it's always conservatives who are supposed to turn the other cheek after liberals smack them.

Sorry, but those days are gone. As florida pointed out, the days of liberals doing whatever they please and then turning around and whining when those same tactics are turned against THEM are long past.

If liberals don't like the game, then they shouldn't have started playing it. This disingenuous complaint that Obama isn't being given a free ride is laughable.

After years of applauding Democratic obstructionism, coming back and whining like a 2-year old that you're not being given your way is beyond hypocritical.

Go take a tissue and have a good cry. When you have the courage to demand that liberals obey the same rules that you demand conservatives play by, then you can be taken seriously.

But since that's never going to happen, I suggest you go invest in some industrial-size hankies. You're going to need them.

If both Ginsburg and Stevens leave, the Republicans should argue that (1) with the federal budget problems, and (2) the small number of cases decided by the Court, that the Court can do fine with 7 members.

As a post-partisan healer, Obama should be cool with that, because it would reduce the number of contentious 5-4 decisions.

Being positive is all nice and healthy but there is no way that two retiring liberals justices can be used to change the balance of the court by a liberal president. Unless he nominates some kind of anti-Souter.

Sorry, but those days are gone. As florida [sic] pointed out, the days of liberals doing whatever they please and then turning around and whining when those same tactics are turned against THEM are long past.

See...there's the difference. I don't "hate," and neither do the vast majority of conservatives.

Save your projection for your mirror.

What I DO have in place of hate is a recognition that there's absolutely no room for Marquis of Queensberry rules when your opponent has no problems punching below the belt or hitting you over the head with a folding chair when the ref isn't looking.

No more judicial activists like Scalia, who downgraded the right to free exercise of religion in Employment Div. v. Smith, or argued that the Founders recognized that non-human entities had the right to freedom of speech, independent of their owners.

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

It seems that the shoe being on the other feet is causing you quite a bit of discomfort.

There aren't any Supreme Court openings yet, therefore, I couldn't possibly be feeling any discomfort, because nothing has actually happened yet. I only correctly pointed out that you are a whiny ass titty baby because you are already pre-whining.

How about a deaf, lesbian, Native American midget? she would check so many affirmative action boxes that the Lefties would swoon.

I don't believe that most of the die-hard types on the left are liberals at all. In fact, they are fundamentalist transcendentalists who believe their messiah will be revealed, a la A.C. Clarke's Nine Billion Names Of God-style, when someone can check every single box.

Honestly, it's the only rational theory that explains their behavior if extended out to it's logical conclusion.

Another woman would be good. Kim Wardlaw, you rock. Pasadena's personal choice.

I would go for the best qualified, no matter what color. That would be unique. Especially after Roberts, Alito and Scalia. Anyone would be better than Thomas, a do nothing that has his clerks write his opinions.

Jim, quoting Florida is going a little to far to the freaky side. Come back to the living

My tipoff was the mention of "the right of the people." People have rights, and non-people do not.

Pretending that the First Amendment was understood to embrace a legal doctrine -- independent legal personality of corporations -- that would not be created until decades in the future is embarassingly ridiculous. Watching Scalia violate his principles to serve his ideology would be comic if it wasn't so important.

At least Bork was an original intent guy, not an "original meaning" guy.

"Pretending that the First Amendment was understood to embrace a legal doctrine -- independent legal personality of corporations -- that would not be created until decades in the future is embarassingly ridiculous. "

The Hudson's Bay Company (French: Compagnie de la Baie d'Hudson), abbreviated HBC, is the oldest commercial corporation in North America and one of the oldest in the world. The company was incorporated by British royal charter in 1670

That is more than 100 years older than our constitution. Keep lining em up...

Anthony said... "My general feeling is that you give deference to the President. Basically I look at whether the appointee is qualified."

Obama voted against Roberts and Alito, both of whom were extremely well qualified. Roberts “far more often used his formidable skills on behalf of the strong in opposition to the weak," Obama said, complaining about the idea that a judge is a neutral umpire. "We need somebody who’s got the empathy to recognize what it’s like to be a young teenage mom."

Obama will be replacing arguably the two most liberal justices. Therefore, I think it high time we had a true liberal scholar on the court. I don't think either Stevens or Ginsburg would consider themselves particularly leftist, so go ahead and give us an avowed leftist. Perhaps even one with a law degree but a nonlegal career. (And expect to have to put up three nominees, because one may be filibustered for sport. Sorry. Them's the new rules.)

And BTW I thought Bush really screwed up by not nominating a woman for one of his spots. It is important that women's views not be exclusively represented by the Left, because in real life they aren't.

Obama as President should be given exactly as much deference by Senators as Obama the Senator showed President Bush. That is, no cloture on his Supreme Court nominees, period.

If progressives want to fill the seats quickly, they can call on Obama to resign and be replaced by a President who did not vote against cloture on Alito, and have that President nominate progressives. Biden voted for cloture, so that would require a second resignation and succession to Nancy Pelosi. Incidentally, that would result in the first female President of the United States.

In the meantime, the Supreme Court can get along fine as a seven-member body (just as it was from 1807 to 1837) until a President who did not vote against the Alito cloture motion is in office.

If health care is passed with a reconciliation gimmick, I would certainly hope the Republicans retaliate with nomination filibusters. I want to see more partisanship, not less. I don't want to cooperate at all with Democrats because they are socialist idiots who will destroy the country if we let them. An Obama win means America fails and vice versa. Nuclear Option Now!

See...there's the difference. I don't "hate," and neither do the vast majority of conservatives.

I don't hate individuals, nor do I hate groups of people for characteristics that they cannot control, but I certainly do hate bad ideas and I do hate some of the groups (such as the Democratic Party) that voluntarily espouse them.

I feel that the cause of smashing collectivism into little tiny pieces is so important that it would justify all manner of behavior I would not otherwise tolerate.

All it takes to shut up a collectivist is to make them to point to even one example in history of where collectivism has ever worked.

It ALWAYS fails. ALWAYS and EVERYWHERE it has ever been tried. When presented with an alternative, people will always choose a different system. And that's why the totalitarian impulse runs so strongly in collectivists. They know that only brute force and groupthink can force people to stay in the system against their free will.

P.S. The sputtering which usually follows confronting collectivists is worth the price of admission. I highly recommend it.

The Hudson's Bay Company ... was incorporated by British royal charter in 1670

That is more than 100 years older than our constitution. Keep lining em up...

Corporations did not have seperate legal personality under British law until the Companies Act of 1862. The concept was not tested in British courts until 1897: Salomon v A Salomon & Co Ltd [1897] AC 22.

That is more than a century after our Constitution. Keep linin' 'em up.

Roberts “far more often used his formidable skills on behalf of the strong in opposition to the weak," Obama said, complaining about the idea that a judge is a neutral umpire.

I wish we had someone to call foul balls here. Obama understandably found it difficult to picture how Roberts -- who for many years had diligently served the strong in their battles with the weak -- would suddenly be able to see things from a neutral point of view.

We don't have ex-Yankees players umpire games featuring the Yankees. No one would put up with it.

At least we would try to put some ex-Red Sox umpires out on the field.

People don't give up their rights when they choose to act collectively. Are you under the impression that Citizens United was acting contrary to its owners' wishes?

The case that Citizens United represented the collective interest of its owners is strong. The case that Alcoa represents the collective interest of its owners is weak.

In thirty years of owning shares, no company has ever asked my opinion on which political positions I want them to support.

Obama would be hard-pressed to find a nominee more qualified than John Roberts.

Finding one might be easy. Rank order the qualities needed for Chief Justice, and list where Roberts rates on each.

Be careful which criteria you pick. Remember: had the 2008 election been decided by standardized tests, Obama would have beat McCain every time. Obama would have also won the free-throw and slam-dunk contests.

"What that is, is a matter of opinion. At first, corporations resisted shareholders advocating for corporate responsibility. Now, most embrace it."

This is a fertile area for debate. Should shareholders that put profit second be able to ruin things for those who are in it for the money? I think that corporate officers owe a fiduciary responsibility to maximise shareholder profits. Unless the corporate charter spells-out some other main goal for the company. One can easily see how this might be the case in say, a dance company etc.

All it takes to shut up a collectivist is to make them to point to even one example in history of where collectivism has ever worked.

some of the earliest citizens of Dallas were members of a failed French Fourier utopian collective called La Reunion just across the Trinity river from Dallas. 500 settlers, but only 12 farmers, they were able to produce wheat for $3 a bushel when everyone else in the area was selling it at 75 cents. apparently they were a little topheavy with philosophers and poets and artists.it is said they failed because individualism took over.

"I wish we had someone to call foul balls here. Obama understandably found it difficult to picture how Roberts -- who for many years had diligently served the strong in their battles with the weak -- would suddenly be able to see things from a neutral point of view."

1) That's not exactly a neutral observation of Roberts' record. So if we had someone to call "foul balls" here, that would have been your first.

2) Obama "understandably" had concerns, but any concerns conservatives have are necessarily not understandable. Gotcha. Foul ball #2.

3) Obama named a woman whose chief claim to fame was her assertion that "a wise Latina" is necessarily better than a white man. If he was truly concerned about finding a juror who could be impartial to both sides, he certainly nominated the wrong person. Foul ball #3.

4) Either political concerns are valid reasons to oppose a nominee or they aren't. Democrats specifically opposed Estrada being named to the bench because he was Hispanic and they didn't want a conservative Hispanic on the bench. They left him hanging for years until he gave up. If something that blatantly political (and racist) passes the smell test for Democrats to filibuster a nomination, then you have absolutely ZERO leg to stand on when Republicans decide to filibuster one of Obama's. Foul ball #4.

Keep swinging. You're bound to put one in play eventually. You just haven't done so yet.